Citation Nr: 22014570 Decision Date: 03/14/22 Archive Date: 03/14/22 DOCKET NO. 17-01 221 DATE: March 14, 2022 REMANDED Entitlement to service connection for lumbar strain, to include as secondary to service-connected pes planus is remanded. REASONS FOR REMAND The Veteran served on active duty from July 1987 to July 1991, with additional National Guard service. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a September 2014 rating decision by the Regional Office (RO) of the Department of Veterans Affairs (VA). The Board previously remanded the Veteran's claim in July 2021. The Board found that the December 2019 VA examination was inadequate as it did not address the Veteran's claims of entitlement. The Board remanded for an addendum opinion. In the December 2019 VA examination, the examiner was asked to address a direct theory of entitlement to service connection due to the Veteran's claim of carrying heavy loads and people in service. The examiner was also asked to address a secondary service connection where the Veteran's lumbar strain may have been caused by her service-connected pes planus. Third, the examiner was asked to address a theory of aggravation, that the Veteran's lumbar strain was aggravated by her service-connected pes planus. The December 2019 examiner did not address the Veteran's claims that carrying heavy loads, including people, caused her lumbar strain. The examiner instead only addressed the Veteran's in service motor vehicle accident and the Veteran's in service treatment for back pain. The examiner did discuss secondary causation, finding that the Veteran's service-connected pes planus did not cause the Veteran's back disabilities. However, the examiner did not address aggravation. The examiner instead opined that "it cannot be stated her low back condition was caused or incurred by her military service, nor by her SC pes planus, as explained above." This opinion does not adequately address the Veteran's theory of entitlement to service connection due to aggravation. Additionally, the December 2019 VA examiner noted that the Veteran's service-connected "flat feet" would not cause arthritis; arthritis is most commonly a product of aging. Her low back condition is due to obesity and her advanced age. The medical evidence demonstrates that the Veteran is obese, yet, the examiner did not address whether the Veteran's obesity was caused by her service-connected pes planus and the obesity caused her back condition. On January 6, 2017, the General Counsel issued a precedential opinion which held that obesity could be an "intermediate step" between a service-connected disability and a current disability and thus satisfy the causal link between the two. VAOGCPREC 1-2017. In such cases where the issue is raised, the adjudicator should resolve three issues: (1) whether the service-connected disability caused the Veteran to become obese; (2) if so, whether the obesity was a substantial factor in causing the current disability; and (3) whether the current disability would not have occurred but for the obesity caused by the service-connected disability. VAOGCPREC 1-2017. The VA examiner failed to address whether the Veteran's obesity was an intermediate step between her service-connected pes planus and her back disability. Further, an addendum opinion was obtained in October 2021. Here, the examiner was specifically asked to opine whether the Veteran's current lumbar spine disability is at least as likely as not related to carrying heavy backpacks and people during her active-duty service. The examiner indicated that there were multiple potential causes of low back pain during the Veteran's service. These causes included length of active duty, carrying heavy loads and people, cervical strain from a motor vehicle accident, and the in-service treatment for lumbar strain. The examiner noted that factors weighing in the Veteran's favor for service connection due to her carrying heavy loads and people were the Veteran's statements and the Veteran's active-duty profile. Factors weighing against were listed as the Veteran's work history, multiple motor vehicle accidents since service, age and body mass index. That is the totality of the discussion of the Veteran's claims. The examiner stated that when reviewing the medical history listed above, that there is not a balance of positive and negative evidence. "From an odds ratio standpoint, the evidence supports the strength of the association for the negative. The discussion for a theory of entitlement which was raised, has been reviewed and it cannot be stated the veteran's low back condition was caused or incurred (at a greater than 50 percent probability) by her active duty." Upon review, the Board finds the opinion lacks sufficient rationale, and as a result, an addendum opinion is necessary to determine the etiology of any lumbar disability. The examiner's opinion did not address the questions posed in the Board's July 2021 remand; is conclusory and speculative; does not reflect consideration of the Veteran's claim of a back disability due to carrying heavy loads and people in-service. See Stefl v. Nicholson, 21 Vet. App. 120, 123 (an adequate medical examination must provide a rationale and explanation for its conclusions). The examiner stated that they reviewed the evidence and even admitted that factors weighed in the Veteran's favor. However, the examiner provided a conclusory opinion that there was no balance of evidence. The examiner did not discuss why the factors weighing in the Veteran's favor were unpersuasive. Based on the foregoing, a remand is warranted for further development. The matters are REMANDED for the following action: Obtain a VA addendum opinion to ascertain the etiology of the Veteran's low back condition. The claims file should be made available to and be reviewed by the examiner in conjunction with this inquiry. 1. The examiner should address the following: (a.) whether it is at least as likely as not (50 percent or greater likelihood) that any current low back condition manifested during service or is otherwise causally or etiologically related to a period of active-duty service. In formulating their opinion, the examiner must discuss the Veteran's claim of lumbar pain due to carrying heavy loads and people in-service. (b.) whether it is at least as likely as not (50 percent or greater likelihood) that any current low back condition is aggravated (increase in severity beyond the natural progression of the disorder) by a service-connected disability to include bilateral flat feet. 2. The examiner must address obesity as an intermediate step between the Veteran's service-connected pes planus and low back disability. The examiner is specifically asked to opine on the following: a) Whether a service-connected disease or injury caused the Veteran to become overweight; b) Whether any service-connected disease or injury aggravated the Veteran's weight; c) If a service-connected disability caused the Veteran to become overweight or aggravated her weight, opine whether the Veteran's weight was a substantial factor in causing the Veteran's low back disability; and d) Whether the Veteran's low back disability would not have occurred but for the weight caused or aggravated by the Veteran's service-connected disability. The examiner is advised that the Veteran is competent to attest to factual matters of which she has first-hand knowledge, including observable symptomatology. The examiner should provide a complete rationale for all opinions expressed and conclusions reached. An examiner's report that he or she cannot provide an opinion without resort to speculation is inadequate unless the examiner provides a rationale for that statement. As such, if the examiner is unable to offer an opinion, it is essential that the examiner provide a rationale for the conclusion that an opinion could not be provided without resort to speculation, together with a statement as to whether there is additional evidence that could enable an opinion to be provided or whether the inability to provide the opinion is based on the limits of medical knowledge. A. J. Spector Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Lent, Edward The Board's decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.